Thursday, January 19, 2006

Federal Court of Appeals Affirms Ruling That National Geographic May Republish Works by Freelance Photographers and Journalists w Digital Formatithout Consent in Many freelance photographers and journalists contributed to the National Geographic Magazine over its history. Most did not specifically license the magazine to republish their work on a recent CD-ROM and DVD entitled “The Complete National Geographic: 108 Years of National Geographic Magazine.”The Federal District Court ruled in the magazine’s favor and the Court of Appeals affirmed the decision on copyright infringement claims filed by photographers and journalists.

The Court of Appeals concluded that the digital versions were a privileged “revision” of the works published in the printed magazines. The Copyright Act allows publishers of collective works a privilege to republish any contributions to the collective work as part of a revision of the collective work. The Court gave two reasons why it considered the revision privileged in this case. First, the Court pointed out that “the original context of the magazine is omnipresent” in the digital versions. Second, the digital versions consist of an “almost” identical presentation of the original magazines. An unprivileged revision, on the other hand, “precludes the reader from viewing the underlying works in their original context.”

The Court ruled against the journalists and photographers on their contractual claim. Though the contracts did not specifically authorize the republishing of the work, the Court concluded that the journalists and photographers had an affirmative obligation to specify in the contracts that their work not be republished in digital format, if that is what they sought.

Congratulations to our client writer/director Craig Brewer on the DVD release of his award winning film Hustle & Flow. After earning more than 22 million at the box office, 600,000 copies flew off the shelves in the first week of its home video release, exceeding all expectations.

Actor Terrence Howard received a Golden Globe nomination for Best Performance, a nomination for the Breakthrough Award at the Gotham Awards, and Best Male lead for the Independent Spirit Awards. The cast was honored with a nomination for Outstanding Performance by a Cast at the SAG awards, and the film won the Audience Award at last year’s Sundance Film Festival.

Perhaps most impressive, Ain’t It Cool News Harry Knowles named Hustle and Flow as simply the Best Film of the Year. Ain't It Cool News: http://www.aintitcool.com/display.cgi?id=22103

MGM and Universal Find Out That They Must Comply with Every Detail of the Red Tape Associated with Filing Satellite and Cable TV Royalty Claims with the U.S. Copyright Office

MGM and Universal Studios lost a copyright suit over some stamps.

U.S. Copyright regulations require that cable and satellite TV royalty claims be filed each year in the month of July. Claims can be filed so that they are delivered by July 31st or they can be postmarked during July. However, the regulations specifically provide that postage meter machine postmarks are not sufficient to establish a claim. MGM and Universal sent their claims out on July 30 using a Pitney-Bowes postage machine. The Copyright office received the claims on August 2nd or 3rd and refused to accept them.

The studios went to court. MGM and Universal submitted uncontested affidavits from employees and the U.S. Postal Service itself in order to establish that the claims had been mailed in July. The Postal Service even confirmed that if the mail arrived by August 2nd or 3rd it had to have been mailed in July. Finally, affidavits (also uncontested) were submitted showing that there is no possible way for the postage meter machines to print a backdated postmark.

MGM and Universal argued that the rejection of the claims violated the Copyright Act, the Administrative Procedure Act and denied them their Constitutional right to due process. The District Court dismissed the case and the Court of Appeals affirmed. The Court of Appeals ruled that the Copyright Office had not misinterpreted its rule, due process had not been denied and the refusal to waive the requirement was not arbitrary nor capricious.

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About Me

A veteran entertainment lawyer, arbitrator, expert witness and author, Mark Litwak has provided legal services or acted as a producer rep on more than 100 feature films. He is the author of 6 books including: Reel Power, Dealmaking in the Film and Television Industry (winner of the 1995 Kraszna-Krausz Book Award), Contracts for the Film and Television Industry, and Risky Business: Financing and Distributing Independent Film. He is also the author of the popular CD-ROM Movie Magic Contracts.
As a law professor, he currently teaches at the U.S.C. School of Law, and has previously taught at the Univ. of Puget Sound and Loyola Law Schools. He has been on the faculty at UCLA for 24 years. He has lectured for the American, California and Texas bar associations. A frequent speaker, he has lectured at many universities including Harvard, the American Film Institute, Columbia University and NYU. He has also presented movie industry seminars in England, Australia, South Africa and Canada.
Mark Litwak is AV®
Peer Review Rated by Martindale-Hubble and has been named a Superlawyer multiple times by the publishers of Law and Politics Magazine.